United States v. Dickens ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4238
DWAYNE E. DICKENS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Richard C. Erwin, Senior District Judge.
(CR-95-132)
Submitted: May 27, 1997
Decided: July 31, 1997
Before WIDENER, MURNAGHAN, and LUTTIG, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
D. Thomas Lambeth, Jr., Burlington, North Carolina; J. Matthew
Martin, MARTIN & MARTIN, Hillsborough, North Carolina, for
Appellant. Walter C. Holton, Jr., United States Attorney, Robert M.
Hamilton, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Dwayne Everett Dickens appeals from his convictions for posses-
sion with intent to distribute cocaine hydrochloride in violation of 21
U.S.C. § 841(a)(1), (b)(1)(B) (1994) and carrying and using a firearm
during and in relation to a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1) (1994). Dickens contends that the district court
erred in denying his motion to suppress the evidence seized during a
warrantless search of his apartment and his motion to suppress his
statement made post-arrest. Dickens also claims that the district court
incorrectly enhanced his sentence for possession of the firearm.
Police responded to an emergency call reporting a domestic distur-
bance at Dickens' apartment. When police arrived on the scene, they
found emergency technicians tending to Dickens' ex-wife Tracy who
was lying in the bedroom on her back with her head near the bed and
her feet extending into the bathroom. Her head was cut and dripping
with blood. Tracy died on the way to the hospital. Police concluded
that Tracy's death was suspicious based upon the emergency calls, the
blood stained carpet and bloody bathroom tile on which Tracy had
been found, and pieces of a broken statue scattered in the kitchen and
bedroom. Police called in crime scene technicians and detectives to
further investigate. Crime scene technicians took photographs and
gathered the broken statue pieces as evidence. Police then collected
as evidence the bloody tile from the bathroom and blood stained car-
pet located at the foot of the bed. When police lifted the bed to
remove the blood stained carpet as evidence, they observed cocaine
wedged in between the two single mattresses which were supporting
the king-size mattress.
Dickens, already at the Sheriff's Department, signed a waiver of
his constitutional rights, made a statement to the police, signed a con-
sent form for the police to search his apartment, and told police that
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there was a firearm in the apartment. Pursuant to Dickens' consent,
police searched the apartment and discovered a nine millimeter pistol
in the closet of the bedroom where police found the drugs and Tracy.
Thereafter, Dickens admitted ownership of the cocaine.
Dickens contends that the district court erred in denying his
motions to suppress the cocaine, his statement, and the firearm. On
motions to suppress evidence, this Court reviews the factual findings
underlying the legal conclusions under the clearly erroneous standard
and reviews the legal conclusions of the district court regarding a sup-
pression determination de novo. See United States v. Rusher, 966 F.2d
868, 873 (4th Cir. 1992).
The district court correctly denied Dickens' motion to suppress the
cocaine. A review of the record reveals that the district court did not
clearly err in its factual finding that the police discovered the cocaine
in plain view while gathering evidence of a possible homicide. Fur-
ther, the district court correctly concluded that the plain view seizure
of the cocaine did not violate Dickens' Fourth Amendment rights. A
plain view seizure is lawful if the following requirements are met: (1)
the officers had a lawful right to intrude initially; (2) the officers
observed the item while within the permissible scope of the initial
intrusion; (3) it was immediately apparent to the officers that the item
was contraband or evidence of a crime. See Horton v. California, 496
U.S. 128, 136 (1990).
We find that the officers seized the cocaine lawfully under the
plain view doctrine. The officers' initial intrusion was in response to
emergency calls and was therefore lawful. While lawfully removing
blood stained carpet which was in plain view and which was immedi-
ately apparent as evidence of a possible crime, the officers discovered
the cocaine, which was in plain view and immediately apparent as
contraband. Therefore, we conclude that the district court properly
denied Dickens' motion to suppress the cocaine. See Horton, 496 U.S.
at 136.
Next, we find that the district court correctly denied Dickens'
motions to suppress his statement and the firearm subsequently
seized. The record reveals that the district court did not clearly err in
finding that Dickens was advised of his constitutional rights, was not
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coerced, and voluntarily waived his constitutional rights. Thus,
because Dickens voluntarily made his statement and voluntarily con-
sented to a police search, we conclude that the district court properly
denied Dickens' motions to suppress his confession and the firearm.
See Moran v. Burdine, 475 U.S. 412, 421 (1986).
To the extent that Dickens objects to the enhancement of his guide-
line range pursuant to the sentencing guidelines, we opine that he has
no claim. The district court correctly found that a loaded nine milli-
meter pistol in the closet in the same room where the police seized
cocaine was sufficient to enhance Dickens' sentence for weapon pos-
session under the guidelines. See United States Sentencing Commis-
sion, Guidelines Manual, § 2D1.1(b)(1), comment (n.3) (Nov. 1995).
Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
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